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International Surrogacy Week: A guide from A City Law Firm

Who do you trust? Where do you go here or overseas? What pitfalls are there & how can you navigate these on your journey?

2021-08-11

Pictures: Pixabay and provided

To mark International Surrogacy Week A City Law firm has some advice for those considering starting the process including where to go and some of the pitfalls other couples have experienced. 

Surrogacy home or away? Who to Trust, how to start & what are my rights?

The law and perception have drastically changed as well as travel restrictions changing weekly so we appreciate it can be overwhelming and confusing sifting through all the literature on the internet. Surrogacy is one of the most important journeys of your life, choose wisely, where to arrange this and who you have in your team on this journey to support you, is fundamental. 

Having well over a decade of experience, helping hundreds of intended parents (IPs) in this field we have witnessed many journeys smooth and otherwise. As parents ourselves, we want to ensure that everyone wishing to have a family is given all the support to achieve this.

We specialise in modern families and have highlighted our client’s experiences and our reported cases here not to concern parents embarking on this journey, but to highlight that if something does go wrong that it’s not the end of the line. People will have your back, and nothing is insurmountable. Forewarned is forearmed as they say, so you will be ready for anything.

Choosing the right country

Often, the starting point is to consider whether to arrange your surrogacy in the UK or overseas. Whilst we appreciate this is largely influenced by the costs, we do need to highlight that some countries, whilst they may be closer to us or cheaper, are not without risks.

Staying in the UK may be more convenient and cheaper, but it is important to note that surrogacy agreements in the UK are not legally binding. Setting out the entire arrangement in writing at the onset is still essential, as it can help later in court to confirm everyone’s intentions should matters not go as planned.

The United States, as an example, is often chosen due to readily available surrogates, rigorous screening, and the fact that contracts are legally binding. This gives you a proven and transparent system offering you security with the process. However, in the USA you can pay for surrogacy services, so you need to be careful to take advice as you cannot pay anything more than ‘reasonable expenses' in the UK and when you return for your parental order this needs to be confirmed and scrutinised.

Careful consideration and planning though can overcome this hurdle, which can slightly delay matters and create the need for a second hearing so there may be cost consequences. Preparation early on can minimise this.

In other countries that promote surrogacy, it may be illegal for LGBTQ+ parents, or they may not recognise single parents, or have additional loopholes you need to be aware of. Some are also new to this sector and don’t quite have the proven record others do, so professional advice in that jurisdiction is even more essential.

Canada is more in line with UK rules and has a proven record. Travel restrictions have also eased and it is less expensive than in the USA. However, surrogates may not be as easy to secure as in the USA, but this is a secure and harmonised jurisdiction for IPs.

Watch our podcasts and read more on this here.

Medical care / Insurances  

Do not forget to do your homework on when you will become responsible for your baby’s medical care/insurance/treatment costs. This varies from country to country and even province or state to state. If your child needs to stay in hospital, it is not just the costs and who pays/who is covered, but also who has parental rights to consent to medical treatment.

Canada has many synergies with the UK and medical treatment was never an issue, but in some provinces, this has now changed. Hospitals are now billing for newborn medical costs and, as we hear, some IPs are now receiving medical bills, which have not been paid. As a result, hospitals are more careful, and lawyers are refusing to follow up on birth certificates if hospital bills are not paid.

Take advice early on regarding the appropriate insurances which aren’t as expensive as many wrongly believe. This can be addressed easily in advance.

Post-birth signatures needed

To obtain a parental order in the UK your surrogate needs to sign a form to relinquish parental rights within six months after the child is born. If she is married her spouse must also sign this. Vetting/screening and binding contracts take out the uncertainty of this process and liaising with the UK and overseas lawyers to prepare for this can often ensure this is a simple admin exercise.

However, issues have arisen where surrogates have separated, or surrogates have refused to sign this form. This can be addressed by an adoption order, negotiation, or contractual rights being enforced. However, to avoid the stress of this we recommend robust vetting and references hence why choosing a clinic, agent, and surrogate with proven track history and references can be vital

Professional advice

We often hear that non-legal parties in the arrangement have told IPs there is no real need for a parental order or immigration advice. It is essential that IPs do their own homework and speak to a solicitor in the UK directly as a parental order is required wherever you carry out the surrogacy arrangement if you are returning to the UK. Also, immigration isn’t as straightforward as it sounds, and we have heard many horror stories of parents being turned back at UK airports for not having the correct documentation. It can be a swift and reasonably inexpensive process to have a consultation and immigration review, so we advise parents not to risk it.

Having experienced people on board before you embark on the journey helps you be prepared, get everything right and in place early. It also saves you delays and money and ultimately if anything goes wrong it can be resolved. Choose wisely and ask them what experience they have, read their testimonials, ask about their fees so it’s all transparent and agreed upfront.

Communication with your surrogate

Most often an intermediary will find the surrogate and vet them for the IP’s protection, which is strongly recommended. However, we also encourage IPs to open and maintain direct communication with the surrogate throughout the process. This avoids any miscommunication, helps for future involvement if that is what you would like, helps with possible future children, and helps prevent potential issues at a later stage.

Other Considerations

Review your employment contract and staff handbook to understand the rights available to you as an intended parent for leave. Adoption leave often covers surrogacy leave too as well as post-birth leave and unpaid parental leave allowances. You should also look at your eligibility for flexible work to assist you.

Review your travel insurance, life insurance, and wills to make sure you have covered all eventualities for your newborn baby and family members.

Client Case Studies

Medical difficulties:

Our client sadly had a baby by a surrogate in Ukraine, who sadly needed extensive medical and hospital treatment. The intended parent couple broke up during this period and single-parent surrogacy was not allowed in Ukraine or the UK at the time. As such, the mother had no legal right to bring the child home or consent to treatment. She also did not have medical insurance. After our involvement, the child was securely bought back to the UK and an adoption order was granted to secure full parental rights. The medical costs and legal costs though were unexpected and unplanned. Read more here

UK Surrogate refused to sign parental order & wanted contact:

Following the baby’s birth, the surrogate wanted additional monies which was an issue regarding ‘reasonable expenses’. She also wanted shared custody and later contact, which was not in the original agreement or a wish of the IPs. There was even a contract to evidence the party’s intentions.  This was a distressing time for the parents involving the court, child services and could of cost them thousands. However, we successfully secured the baby for the IPs with full custody and parental rights bestowed upon them. This case was unreported as it was sealed by a family court

“Thankfully City Law was with us every step of the way, as intended parents, we needed this. My partner and I worked with the team in what was a very complex surrogacy dispute where the surrogate initially refused to hand over the child to us. She ended up handing him over after about two weeks but then refused consent to a parental order and when we lodged an application for a child arrangement order, the surrogate lodged a counter application for him to live with her. Thus, ensued months of stressful litigation, but it was resolved successfully.”

Separation before the baby was born:

We have had IPs separate during the process before the parental order was issued which was at the time when single surrogacy was not permitted. Either way, the non-biological parent would have lost all legal rights. Yet we successfully argued the court should set a precedent by allowing the parental order application on the basis two homes between parents continued to qualify as it would when any parent separates. Read more here

“First the successful surrogacy, then assistance with my separation and employment, and finally my child custody case. They supported me throughout and were so professional, efficient, and caring I could never go anywhere else”

Intended parent denied leave for the birth of his child overseas:

The non-biological intended parent was told by his employers he was not entitled to any leave as he was not biologically connected to the child, who was born in Canada. We helped our client address his employer’s clear discrimination, and although it led to a tribunal the client was present for the birth of his baby and able to bring her home. He kept his employment during this essential time, and compensation for the discrimination is still being addressed.

Do your preparation, meet with your UK surrogacy solicitor and allow them to liaise immediately with your lawyer in the jurisdiction that the surrogacy will take place. That way we can ease your process abroad so that you will have all the UK requirements in hand before you return with your baby. Read more about our services here.

For more articles or to read our testimonials please read more here.